McTighe, Hughey & McTighe v. Johnson

Stevens, J., delivered the opinion of the court. Appellants were defendants in the court below in an action for damages, instituted by Mary Willie Johnson, a minor, by Amzi Johnson, her father and next friend. Appellants, as contractor, entered into a contract with the proper authorities of Attala county to construct and improve certain highways, one of which is referred to as the “Natchez Trace” Road. It appears that they were also awarded the contract to construct the .Greensboro Road and the Louisville Road, but the actual work of improving the last-named road, and also a portion of the Natchez Trace, south, was done by persons employed by appellants under an arrangement which appellants contend characterizes them as subcontractors. It appears that the Natchez Trace Road and the Greensboro Road were at some places only a mile or two apart. Plaintiff’s father, Amzi Johnson, with his'wife and several small children, occupied a house near the Natchez Trace Road during the time that the defendants were grading and surfacing this highway, being tenants of one Crosby. The landlord, Mr. Crosby, also owned a vacant dwelling house located some ten or fifteen feet from the Natchez Trace Road and about two hundred yards from the house in which Johnson and his family resided. The uninhabited house contained some fodder and cornstalks. The, testimony shows that, on several occasions, — 868 — the employees of appellant entered the vacant house while they were working near it, on one occasion seeking shelter therein from a rain. The testimony is sufficient to show that these employees carried dynamite and dynamite caps on the premises of this vacant house. The contractors in building the highway, which passed near the premises, made use of considerable quantities of dynamite. The house which Johnson and his family occupied having been destroyed by fire, he moved into the vacant house of his landlord, and, in doing so, removed the provender from the house. A few days after the family had been occupying the house, the small children, all under the age of twelve years, were playing under the house and found on the sill of the house a tin box filled with dynamite caps. The little child who found the explosive handed the dynamite caps to his sister, the plaintiff, and the plaintiff, in scratching one of the caps with a metallic hair pin, caused it to explode in her hand, and as a result of the explosion she lost one of her hands. The injured child, by her father, instituted this suit for damages. After issue joined, the case was tried on a change of ‘venue to Copiah county. The case was submitted to a jury, who returned a verdict in favor of the plaintiff .for five hundred dollars, from which this appeal is prosecuted. The main contention of appellants is that the trial court erred in permitting the plaintiff to show several alleged acts of negligence on the part of the defendants other than that complained of in the declaration. There was, indeed, a wide latitude given the plaintiff in making out her case, and the court permitted the plaintiff, over objection of defendants to show that sticks of dynamite and dynamite caps were found in front of one Neil Ford’s house, stuck in the hank, on the Greensboro Road, some half mile from plaintiff’s house; that some dynamite was seen on the Louisville Road where the em — 869 — ployees had camped, about two miles from plaintiff’s house; and other evidence of similar nature was permitted to go to the jury. The defendants in rebuttal introduced evidence tending to ’show that they did not in fact build the Greensboro Road, the Louisville Road, and the Natchez Trace, south. There was ample testimony, however, to the effect that the employees of the defendants did, in fact, store dynamite in the very house into which Johnson with his family moved, the very premises upon which the little girl found the dynamite cap that caused the injury complained of. The plaintiff was required to prove her case largely by circumstantial evidence, and in doing so was permitted to show that the defendants handled large quantities of dynamite all along the highway which they constructed, and upon which plaintiff’s house was located. The defendants denied liability altogether. It was the purpose of the plaintiff to show that the box of caps was placed in the vacant house belonging to Mr. Crosby through the human agency of some one, and that the defendants were the responsible parties. The evidenc abundantly justifies the finding of the jury. There was no sufficient showing by the defendants that some other person, either subcontractor or stranger, had anything to do with placing dynamite upon the Crosby premises. If we concede, then, that the evidence assumed too wide a scope, we do not believe the incompetent parts of the testimony did the defendants any substantial harm. The evidence warranted the jury in believing that the defendants handled the explosives in a negligent manner. It appears that on several occasions a wagon loaded with explosives was driven by small negro boys; that on one occasion these explosives were stored for the night in a house near the scene of the accident; on another occasion, that they were stored in a potato house; that a box of dynamite was seen on the gallery of the vacant house; that on still another occasion a box of caps was overturned under the — 870 — house and some of them spilled. The witness Leonard Winters testified that the defendants’ foreman, who had general supervision of the dynamite, remarked to him about a month before the plaintiff was injured that the defendants might have put a box of caps in the very house in which the plaintiff was injured. By the first instruction given the plaintiff, the jury were told that persons using a dangerous explosive are required to use ‘ ‘ the highest degree of care and caution. ’ ’ The defendants asked that the jury he instructed that they were only required to use “ordinary care.” The court, in our judgment, committed no error in stating the degree of care required. “The degree of care required of persons having the possession and control of dangerous explosives, such as dynamite, is of the highest. The utmost caution must be used to the end that harm may not come to others coming in contact with them.” 11 R. C. L. p. 662, par. 14. It is true the defendants were using the explosives for a useful and legitimate purpose, and that they had done the work in front of the premises where plaintiff was injured some two or three months prior to the date of the injury. It was certainly their duty, however, to take the necessary precautions to prevent injury to others, especially to innocent children, and to this end, remove all unused explosives. The testimony on behalf of the plaintiff shows that they not only deposited explosives without protecting or guarding them, but that they in fact placed explosives in this vacant house, and the necessary inference is that they left explosives in a house which they knew was constructed primarily as a dwelling house. They should have anticipated that the house would be reoccupied by some one, and that explosives left by them in or about a vacant dwelling house would he a dangerous agency capable of producing an injury of the character here complained of. A thoughtful person would naturally anticipate that, if the house was re — 871 — occupied at all, small children would be there present to play in and about the premises and to explore all accessible portions of the house. By the verdict of the jury, appellants are convicted of leaving dangerous explosives on dwelling-house premises over which they had no control. Complaint is also made of instruction No. 3 given the plaintiff, which reads as follows: “The court instructs the jury for the plaintiff that, if they believe from the evidence that the defendants negligently left exposed the cap which was found by the Johnson children, the explosion of which resulted in the injury complained of, it is no defense whatever that the house in or about which it was found was unoccupied at the time the cap was left.” Taken and read in connection with the many other instructions given, the granting of instruction No. 3 does not, in our judgment, constitute reversible error. Interpreted literally, this instruction is not correct when it states that the fact that the house was unoccupied at the time the caps were left there “is no defense whatever.” The fact that the house was unoccupied is merely a circumstance in the case, a. circumstance which the jury should consider in connection with the other evidence. It still remains that appellants were not justified in storing dangerous explosives in the house simply because it was at the time vacant. The instruction contains the essential hypothesis that the jury must “believe from the evidence that the defendants negligently left exposed the cap which was found by the Johnson children,” and in all essential features the instruction announced the law correctly. The instructions for the defendant were most liberal, the verdict is most reasonable, and the judgment complained of should be affirmed. The following authorities support the law as announced by the trial court, and uphold the liability here enforced: Vills v. Cloquet, 119 Minn. 277, 138 N. W. 33; Tibbits v. — 872 — Spokane, 64 Wash. 570, 117 Pac. 397; Grabb v. Wilkins, 59 Wash. 302, 109 Pac. 807; Juntti v. Oliver Iron Mining Co., 119 Minn. 518, 138 N. W. 673, 42 L. R. A. (N. S.) 840; Akin v. Bradley, etc., Co., 48 Wash. 97, 92 Pac. 903, 14 L. R. A. (N. S.) 586; Nelson v. McLellan, 31 Wash. 208, 71 Pac. 747, 60 L. R. A. 793, 96 Am. St. Rep. 902; Powers v. Harlow, 53 Mich. 507, 19 N. W. 257, 51 Am. Rep. 154; Mattson v. Minnesota, etc., R. Co., 95 Minn. 477, 104 N. W. 443, 70 L. R. A. 503, 111 Am. St. Rep. 483, 5 Ann. Cas. 498. Affirmed.